The U.S. Court of Appeals for the Third Circuit recently affirmed a lower court’s dismissal of a whistleblower retaliation case brought under the 2002 Sarbanes-Oxley Accounting Reform Act (SOX), both because the plaintiff failed to show a causal connection between his protected activity and his termination, and because the employer showed that it had good reason to fire him anyway.
Nearly three years ago, the Third Circuit sent the case back to the trial court for further proceedings after finding that the plaintiff only needed to have a “reasonable belief” that SOX-covered fraud was, or was about to be, committed.
On remand, the trial court held that the plaintiff failed to prove retaliation, and this time the Third Circuit agreed (Wiest II), finding that even if a whistleblower retaliation plaintiff has engaged in protected activity, his or her case will fail unless they can show that the protected activity was a contributing factor to the adverse employment action being challenged.
Moreover, if the employer can show that it would have taken the same action regardless of the protected activity — in Wiest’s case, based on numerous complaints of inappropriate sexual behavior that were substantiated by an internal investigation — the plaintiff’s case will fail for that reason as well.
The Third Circuit’s decision in Wiest II is available here.
Members of the Equal Employment Advisory Council (EEAC) can read more here.